Burden of Proof

Will Former Sen. John Ashcroft be the Next Attorney General?

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

GRETA VAN SUSTEREN, CO-HOST: Today on BURDEN OF PROOF: smooth sailing or turbulent waters? Will former Sen. John Ashcroft be the next attorney general?

(BEGIN VIDEO CLIP)

SEN. TIM HUTCHINSON (R), ARKANSAS: The question that's been raised about his stance on civil rights I think is an absolute red herring. Here is a guy who voted for 90 percent of the African- American nominees to come before the U.S. Senate. This is a good man and he will be a great attorney general, the kind of person we need in the Department of Justice.

JESSE JACKSON, RAINBOW PUSH-COALITION: He eliminated Judge White, and then later tried to eliminate Dr. Satcher. And so there will be a mass mobilization against Mr. Ashcroft because he represents a fundamental threat to civil rights and social justice.

PRESIDENT-ELECT GEORGE W. BUSH: I hope people do talk to John Ashcroft about his vision of civil rights and his concept of fairness in America, because I certainly did.

(END VIDEO CLIP)

ANNOUNCER: This is BURDEN OF PROOF, with Greta Van Susteren and Roger Cossack.

VAN SUSTEREN: Hello and welcome to BURDEN OF PROOF.

He's being called George W. Bush's most controversial Cabinet nominee. Former Sen. John Ashcroft hopes to become the next attorney general, but groups opposed to his conservative views vow to fight his confirmation.

ROGER COSSACK, CO-HOST: Now, the controversy surrounding the former Missouri senator has raised some interesting questions regarding the role of the nation's chief law enforcement officer. Now, should an attorney general be expected to only enforce the nation's laws, or does the head of the U.S. Justice Department also have another role in that of a policymaker?

VAN SUSTEREN: Joining us today from Houston, Texas is Republican Marc Racicot, who's the former governor of Montana. From Jefferson City, Missouri, we're joined by Missouri Attorney General Jay Nixon. COSSACK: And here in Washington, Mike Natarella (ph); Republican Sen. Robert Smith of New Hampshire; and Patricia Ireland, president of the National Organization for Women. And in the back, Crystal Galyn (ph) and Linda Brazil (ph).

Patricia, I want to start right with you. Isn't the only question really that Sen. Ashcroft has to answer at his hearing is, will you fairly enforce the laws as head of the Justice Department in the United States across-the-board?

PATRICIA IRELAND, PRESIDENT, NATIONAL ORGANIZATION FOR WOMEN: Well, certainly that's an important question, but fair is subject to interpretation. The attorney general is going to have to decide allocation of resources: What do the U.S. attorneys do? How does the FBI spend its time? And importantly, what cases do they take to the Supreme Court? In what cases do they intervene that other people have taken?

For example, when NOW sued Operation Rescue, ultimately successfully getting a unanimous jury verdict that they were racketeers, the solicitor general from the Department of Justice argued on our side in the Supreme Court saying that we could move forward with that case. So there are many ways that the policy is actually shaped by those decisions.

VAN SUSTEREN: Senator, is it as Patricia Ireland says? Do you agree with her that it's more than just the statement, I will enforce the laws fairly? Should we look for more in an attorney general?

SEN. BOB SMITH (R), NEW HAMPSHIRE: Absolutely. The attorney general should enforce the laws and allocation of resources, and all of those things are true. And the irony of all this so-called turbulent waters is that John Ashcroft has done just that, twice as the attorney general, two terms as attorney general in Missouri. He was given commendation by the National Association of Attorneys General for enforcing the law. One was a prestigious award named after a member of -- a former attorney general in my own state, Lou Weiman (ph). He's been given commendations for enforcing the law fairly.

VAN SUSTEREN: If we're going to look at commendations as being a reason to vote for someone or against something, let's talk about Bob Jones University. They gave him an award. And this is the university which I think many people have lots of objections to because it has, for instance, banned, until recently, interracial dating, come under an awful lot of scrutiny. Why would he accept an honorary degree from a university like that?

SMITH: Well, that's old news. I mean, that's happened before.

VAN SUSTEREN: It's not -- well, it may be old news...

SMITH: Sure it is.

VAN SUSTEREN: ... but he's now up for new news and this is... SMITH: But what's the issue? But what's the point? Is the point is that he's a racist because he accepted that? Is that the point?

VAN SUSTEREN: I think it -- I don't know if I go so far as saying he's a racist. What I will go so far as to say, that he's exercised bad judgment to take a degree from a university that has advocated that.

SMITH: Was it bad judgment on the part of Ted Kennedy to oppose Clarence Thomas? Was Ted Kennedy -- and Patricia Ireland. I've not accused either one of them of being a racist.

VAN SUSTEREN: I don't think -- I think we look at the individual.

SMITH: There's a big -- it's the issue, isn't it?

COSSACK: Let me jump in here for a moment.

SMITH: Clarence Thomas was black. Jessie Jackson was just on -- I know you want -- Jesse Jackson was saying that...

COSSACK: Let me jump on it because I want to move it around a little bit, Senator.

SMITH: ... you know, with civil rights and all this.

COSSACK: But I want to follow up on your question.

SMITH: Civil rights for liberal activists.

COSSACK: Gov. Racicot, is it relevant that someone like Sen. Ashcroft has accepted an award, as my partner points out, from Bob Jones University, in light of the fact that he now wants to become, and has been nominated for, the top law enforcement officer? I mean what -- should the inquiry be limited to strictly the question of, how will he act in enforcing the law? Is it relevant, these kinds of activities that have been brought up?

MARC RACICOT (R), FORMER MONTANA GOVERNOR: Well, clearly one's personal history is relevant. But the fact of the matter is, you have to place everything in context. I know that I received an honorary degree from a school that subscribes to Lutheran beliefs, and I'm a Catholic. It doesn't mean that I subscribe to virtually everything that took place at a Lutheran school.

VAN SUSTEREN: But did that school come out and actually advocate a form of discrimination -- the Lutheran school? Did they say, for instance, all people of other religions shouldn't do this, or bad or whatever? Does it advocate that?

RACICOT: Well, I'm not aware of virtually all of the tenets.

COSSACK: I'm not sure that's what Bob Jones does. What it said was it banned interracial dating until recently. That's what I think the objection was.

IRELAND: It's a very anti-Catholic school.

VAN SUSTEREN: And it's also very anti-Catholic, Roger. It is not inclusive, it is exclusive.

COSSACK: OK, OK, OK.

Gov. Racicot, I want you to finish up and go to the point of whether or not -- what we should be actually looking at and what's important and what isn't.

RACICOT: Well, the bottom line is whether or not the person has a record that reveals that they can enforce the law fairly as it's written. Clearly they participate in policy discussions. But here you have a man who has a very distinguished record over a quarter century. He was honored by the National Association of Attorneys General by being their leader elected to that position, he voted for 26 African Americans for confirmation when they came before the Senate, he had legitimate law and order enforcement grounds that were a concern to him when he voted against Judge Ronnie White, he was commended by St. Louis Black Bar Association.

I mean, this is a man with a very, very distinguished record of achievement and enforcement of the law as it is. And, clearly, I think these arguments against his confirmation on this basis are clearly disingenuous.

VAN SUSTEREN: Jay, you are from the state of Missouri. You're the attorney general out there. Are these statements that are being made about the nominee for the attorney general, are those statements that are heard within the state of Missouri where people know him best?

JAY NIXON, MISSOURI ATTORNEY GENERAL: No. And Gov. Racicot is just wrong in saying that the Black Bar Association of St. Louis awarded John Ashcroft some award or something for not voting for Ronnie White. The exact opposite of that is true.

I mean, it's clear here John Ashcroft's not from the political mainstream of our country. And the question we have in place is, what's the role of the attorney general in our politics? Those that want to confirm him try to show a very narrow role for his confirmation process when, in reality, you have an opportunity to be aggressive or absent on a number of issues in the policymaking position of attorney general of the United States.

COSSACK: And Sen. Smith, isn't it -- you know, Gov. Bush said -- he gave a quote. He said he will "enforce the law, not politicize the office." But, in fact, by definition, he's a Cabinet -- he's on the Cabinet. Isn't that a political office? How can you not politicize the attorney general's office?

SMITH: Well, I think it has been politicized in the last eight years. I don't think John Ashcroft will do it. John Ashcroft is one of the finest, most decent men that ever served in the United States Senate. He's respected.

VAN SUSTEREN: But is he -- he may be, but is he the best one for the job?

SMITH: Yes he is, yes he is, absolutely. I'll defend him to the hilt, absolutely. His honor and his integrity are beyond reproach. He will enforce the law, he has done it. And for people to even insinuate that John Ashcroft somehow is some racial, anti- -- I mean, that is serious business.

COSSACK: Well, it is serious business, but there is some evidence.

SMITH: Look, he signed the King holiday.

COSSACK: There is some evidence.

SMITH: He only opposed Ronnie White and one other judge that was black. Come on.

COSSACK: All right, let's take a break and then we'll come back and we'll talk some more about it.

Up next, a look at the reasons why Ashcroft does face these tough questions on Capitol Hill, from abortion rights to affirmative action. Don't go away.

(BEGIN LEGAL BRIEF)

The FBI is planning to file new federal charges of unlawful flight against seven Texas prison escapees. Federal and local investigators continue the search in what is being called the biggest manhunt in Texas state history. The seven convicts, who escaped from the Texas prison system's Connally Unit on Dec. 13, have also been charged with two robberies and the killing of a police officer.

(END LEGAL BRIEF)

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

SEN. JEAN CARNAHAN (D), MISSOURI: Like all nominees that we have had recently, we are going to have to give them a fair and a full hearing in the committee process. That's what I suspect we will do with John Ashcroft and with all the other nominees as well. I think that's the fair thing. I think that's what the senator would want me to do.

(END VIDEO CLIP)

COSSACK: Democrat Jean Carnahan is taking over the congressional seat once held by former Senator John Ashcroft. Ashcroft, the Republican with a conservative track record on Capitol Hill is back in Washington this week. He has been nominated as the next attorney general. Patricia, before we went to break, we were talking about the notion of the attorney general as just a law enforcement officer, or a policymaker. Your particular concerns have to do with women's rights. Are you concerned that, as an attorney general, there are laws on the books right now that protect women's rights, that Senator Ashcroft, or Attorney General Ashcroft would not want to enforce those laws as he should?

VAN SUSTEREN: Not want to or wouldn't, that's a different issue.

IRELAND: Well, I think there is a couple of concerns. I think you have a policy impact, for instance, when you make recommendations for a surgeon general -- right, a solicitor general, or the assistant attorney general for civil rights or for criminal matters. Those are all going to have an impact on policy.

I think, specifically, the decisions on how far to go, how much resources to put behind enforcement of the hate crimes laws, when he opposed the Hate Crimes Prevention Act that would include women in that category. I think the question of whether he's going to push to enforce the Freedom of Access to Clinic Entrances Act.

I go back, of course, and question whether he is soft on the Constitution. I remember when he sued the National Organization for Women for the boycott of the unratified states in the Equal Rights Amendments. I think that was, and the 8th Circuit thought that was, a matter of free speech, and the right to petition the government.

So I see him as being soft on the right privacy and reproductive freedoms, soft on free speech and right to assembly. I think that he is going to be a problem on a number of issues, including the Violence Against Women Act.

COSSACK: What does that translate into, though? Does that translate into somebody who says, you know, I don't agree with this stuff, but I'm going to do it, because I'm the attorney general?

IRELAND: He is going to set the priorities for that Department of Justice. He has not only got the bully pulpit, which is a whole separate question, but what are the resources? How many assistant attorney generals are going to go after what issues? What are they going to pursue in the Supreme Court? What are they going to push at the local level on law enforcement? Are they going to go on white- collar crime? Are they going to go on antitrust? Are they going to go on Violence Against Women?

VAN SUSTEREN: Let me get the other side. Governor Racicot, do you want to respond on behalf of the senator, former Senator Ashcroft?

RACICOT: Well, I would disagree in very, very strong terms. The fact of the matter is, there are numerous laws on the books that an attorney general has to end up defending and implementing with good faith because that's what the law is, it is a manifestation of the will of the people of this country, through their elected representatives. I have absolutely no fears, in any way whatsoever, that John Ashcroft won't do that faithfully, as he's expected to do. That's doesn't mean that he necessarily would agree with every single legislative enactment that might take place.

COSSACK: Governor Racicot, apparently, part of Senator Ashcroft's opposition to the abortion laws is based on his own spiritual believing. Is it right to expect that someone who has that opposition, based on his spiritual and religion feelings, would be or should be...

COSSACK: No, I am not talking, I am just saying that: Are we asking too much if someone...

VAN SUSTEREN: I think...

COSSACK: Wait just a second.

VAN SUSTEREN: I think we are stepping on his right.

COSSACK: He has an absolute right to believe what he wants, but I am saying, if he bases it on faith, are we asking too much of someone who is basing their feelings on faith to then go ahead and enforce laws that clash with those feelings?

RACICOT: I think what you are asking, Roger, is whether or not he can do the job faithfully. And the answer to that question is unequivocally yes. I mean, I'm pro-life, and there were numerous times that I had to visit the issue of abortion, whether in a Medicaid setting or arguing before the legislature or the courts of the state of Montana, and I could enforce the law as it was written because that's what I faithfully subscribe to do. There's no question in my mind that Senator Ashcroft will be able to do the same thing. That doesn't mean that he necessarily would enact that law precisely in those terms if it were his sole prerogative.

VAN SUSTEREN: And I hope that everyone is wise enough not to attack him for his religious belief in this confirmation proceeding. But let me move on to...

IRELAND: We have a separation of church and state, though; that's where the question is.

COSSACK: I was saying the issue -- this a man who has strong beliefs, and...

SMITH: What in the world is wrong with having strong beliefs.

COSSACK: Nothing.

SMITH: There is a big difference between having strong beliefs and enforcing the law, as governor... COSSACK: Nothing. What I was trying to do was respect the notions of where his opposition comes from, and whether or not that puts him in a conflict position.

Jay, I want to talk about the dispute over Judge Ronnie White in the state of Missouri. What can you tell me about that dispute?

JAY NIXON, MISSOURI ATTORNEY GENERAL: Well, Judge Ronnie White is the first African-American judge appointed to our state supreme court. He is a good judge. He has been a good stateside judge on criminal cases. I've known Ronnie White for years. Ronnie White has a better record on the death penalty than the Republican judge that he replaced when he was appointed to the supreme court.

John Ashcroft, when he had a chance to question Ronnie White in the Judiciary Committee, where Ashcroft sat, didn't ask any questions about the death penalty, and then tries to organize a political campaign here in Missouri by ginning up people to be opposed to Ronnie White because of a very controversial, difficult decision, which I was on the other side of, supporting a death sentence of a mass murderer.

VAN SUSTEREN: Senator Smith, let me ask you about that. I mean, even Sen. Kit Bond, initially -- first of all, the Judiciary Committee passed on Judge White on two occasions, including Senator Kit Bond I think introduced him and said he was of high integrity, and descent man. Then, suddenly, when it gets down to the floor to the vote, even Sen. Bond switched his vote. And it seems like lots of senators did that. What was wrong with Judge Ronnie White?

SMITH: What was wrong with Judge White was exactly what was just referred to by Mr. Nixon, was the case -- that was my reason for my vote, where he imposed his own personal views on the death penalty.

VAN SUSTEREN: In that particular case...

SMITH: It was the exact thing you are talking about John Ashcroft.

VAN SUSTEREN: I read, and what he said -- he dissented from that death sentence in the case you are talking about because he thought that the defendant, as bad as he was, had not received effective assistance of counsel, and even said, had he received effective assistance of counsel, he would have and he didn't.

SMITH: That's his right to dissent, but you can't -- let me finish. He has every right to dissent. But in that dissent, he has to be held accountable for that dissent. This man murdered three police officers, came back killed the wife of a sheriff in front of the family and...

VAN SUSTEREN: And there's no question... SMITH: He was found guilty by a jury, and it was not overturned by the appellate courts. And when it came to the supreme court everybody except Mr. White supported that decision.

VAN SUSTEREN: We've got to take a break. Patricia, I will let you respond to it. No question it was a horrible crime. We will be right back. Stay with us.

(BEGIN Q&A)

Q: On this day in 1964, the "Boston Strangler" killed his last victim. Albert DeSalvo confessed to raping and killing 13 women in the Massachusetts capitol between 1962 and 1964. Before the killings, previous crimes earned him what nickname?

A: "The Measuring Man." DeSalvo spent nearly a year behind bars for fondling women while measuring them under the guise of representing a modeling agency.

(END Q&A)

(COMMERCIAL BREAK)

VAN SUSTEREN: Former Senator John Ashcroft's conservative record dates back to 1976, when he was first elected attorney general of Missouri. That political record continued in Washington. And if opponents have their way, it could be the source of contentious confirmation hearings on Capitol Hill.

Jay, are you the attorney general of Missouri, as I have said now six times. Is Judge Ronnie White soft on crime or not?

NIXON: Judge Ronnie White is not soft on crime. We've been in front of him hundreds of times on criminal cases. He is a good state- side judge, he supports it. John Ashcroft's action there were using politics to really play to the far right. I mean, the fact that it was an African-American judge even made it more acceptable as an argument that this man was somehow soft on crime. It is just not true.

COSSACK: Patricia, I want to give you a chance to follow up. And Governor Racicot, then I am going to give you a chance on this too.

Go ahead, Patricia.

IRELAND: Well, I find it very troubling that it is cast in racial terms, not to say that that's not a factor, but I think a really important question is one of timing. And it seems odd to me that Ashcroft did not oppose Ronnie White until he ended up in that bare-knuckle fight with Mel Carnahan for the election, And that his saying that the law enforcement agencies were raising red flags, perhaps he didn't know -- honestly didn't know that it was his aides who had called the law enforcement agencies to raise the red flags.

In other words, whether it was by coincidence or not, I find some serious questions how that was handle.

COSSACK: Governor Racicot, I know you want to weigh in on this issue too. Please, go ahead.

RACICOT: Well, first of all, there is absolutely nothing wrong with Judge White as a human being and as a lawyer. The fact of the matter is that you have John Ashcroft here with a 25-year history. He has appointed African-Americans to numerous different positions over the course of time. He appointed the first woman to the Missouri Supreme Court. The St. Louis Black Bar Association did commend him on the diversity in his appointments. He signed the first Hate Crimes Law in Missouri. He signed the Martin Luther King Holiday Bill in the state of Missouri. He approved 26 different African-Americans for Senate confirmation.

So the bottom line here is that to suggest that somehow his objections to Judge Ronnie White on law and order grounds, after the Missouri and National Sheriffs Association opposed him, is disingenuous at best, and I think outrageous as worst.

VAN SUSTEREN: Senator, give me your estimate, your guess, the vote; what is it going to be on this man?

RACICOT: Well, I don't have a way to determine that.

VAN SUSTEREN: let me ask the senator.

SMITH: First of all, there is going to be a lot of commotion. There is going to be a lot of rhetoric, and when it is all over, John Ashcroft is so well respected, in my view, by his colleagues that he will coast through. It will be 90 votes minimum.

VAN SUSTEREN: Not only that, we have bet dinner during a break, which we probably shouldn't have on the 90...

COSSACK: You didn't bet, you just talked about it.

VAN SUSTEREN: We talked about it, right.

COSSACK: Gov. Racicot, I want to come back to you about the Ronnie White and give you some statistics, and I think this is going to come back to be asked to Sen. Ashcroft. Ronnie White voted for the death penalty 41 out of the 59 times that he had the opportunity to. And of the 18 times that he didn't, 10 of those times was unanimous with all the other judges that he cast the vote. So it was only eight times that he was in the minority. Now that makes a very difficult argument to say that this man is in some way soft on crime or soft on the death penalty.

RACICOT: It was not just capital punishment cases, Roger. The fact of the matter is that he dissented almost three times as often in capital punishment cases and other law enforcement cases important to law enforcement agencies than any other judge on the panel.

So the bottom line is, this is not just about capital punishment. It is about a law and order approach, which in the exercise of his judgment, Sen. Ashcroft manifested what he thought were his concerns.

IRELAND: The other concerns I have are on the enforcement of the civil rights laws for women, for people of color; will be strongly enforcing those? Where will he be on abortion? This is a man who proposed a constitutional amendment that not only would ban abortion, but would actually have banned some of the most effective kinds of birth control, the IUD...

(CROSSTALK)

IRELAND: Those are cases that are going to go to the Supreme Court, and even this Supreme Court found the Nebraska abortion procedures ban too dangerous, too deceptive. Where will the A.G. be when the Congress passes again?

COSSACK: Last word, Patricia, because that is all the time we have for today. Thanks to our guests, thank you for watching.

Today on "TALKBACK LIVE": The Fed cuts interest rates. What does it mean for you? Send your e-mail to Bobbie Battista and tune-in at 3:00 p.m. Eastern time.

VAN SUSTEREN: And tonight on "THE POINT": President-elect George W. Bush meets with business leaders in Texas. Will the country be better off four years from now? We will get to the point at 8:30 p.m. Eastern tonight.

And join Roger and me tomorrow as we track a massive manhunt in Texas. Seven prison escapees are still on the run, and they are armed and dangerous. Tune in again tomorrow for another edition of BURDEN OF PROOF. We will see you then.

TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com